Citation Nr: 22011685 Decision Date: 03/01/22 Archive Date: 03/01/22 DOCKET NO. 17-67 329 DATE: March 1, 2022 ORDER The appeal as to whether the discontinuance of the 10 percent evaluation assigned based on multiple, noncompensable, service-connected disabilities, effective January 13, 2016, was proper is denied. FINDING OF FACT The Veteran has been in receipt of a compensable disability rating during the entire period on appeal. CONCLUSION OF LAW The criteria for a 10 percent rating based on multiple, noncompensable, service-connected disabilities have not been met as a matter of law. 38 U.S.C. § 1155; 38 C.F.R. § 3.324. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1975 to May 1979. In November 2021, a Board hearing was held before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. Whether the discontinuation of a 10 percent evaluation assigned based on multiple, noncompensable, service-connected disabilities, effective January 13, 2016, was proper. The Veteran contends that the discontinuation of his 10 percent rating for his burn scars, effective January 13, 2016, was not proper. While the Board is sympathetic to the Veteran's claim, the record reflects that the 10 percent rating assigned for the Veteran's burn scars was awarded pursuant to 38 C.F.R. § 3.324, based on two or more noncompensable service-connected disabilities. This is reflected in the December 2006 rating decision that granted service connection for multiple burn scars with noncompensable evaluations and awarded a single 10 percent rating under 38 C.F.R. § 3.324. Therefore, the provisions of 38 C.F.R. § 3.324 for multiple, noncompensable, service-connected disabilities apply. 38 C.F.R. § 3.324 provides that whenever a veteran is suffering from two or more separate, permanent service-connected disabilities of such character as to clearly interfere with normal employability, even though none of the disabilities may be of compensable degree under the Rating Schedule, the rating agency is authorized to apply a 10 percent rating, but not in combination with any other rating. The provisions of 38 C.F.R. § 3.324 are predicated on the existence solely of non-compensable service-connected disabilities. Once a compensable evaluation for any service-connected disability has been awarded, the applicability of 38 C.F.R. § 3.324 is rendered moot. See Butts v. Brown, 5 Vet. App. 532, 541 (1993). In a May 2016 rating decision, the Regional Office (RO) granted service connection for tinnitus and assigned a 10 percent initial rating, effective January 13, 2016. Consequently, the RO also discontinued the 10 percent rating (assigned under 38 C.F.R. § 3.324) for multiple, noncompensable, service-connected disabilities, effective January 13, 2016. As indicated, the provisions of 38 C.F.R. § 3.324 are predicated on the existence solely of non-compensable service-connected disabilities. As the Veteran was granted a compensable 10 percent rating for tinnitus, effective January 13, 2016, the 10 percent disability rating under 38 C.F.R. § 3.324 was rendered moot and was properly discontinued as of that date. Accordingly, the Veteran's claim seeking reinstatement of the 10 percent rating under 38 C.F.R. § 3.324 must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Board acknowledges the contentions made by the Veteran and his attorney that the Veteran was in receipt of a 10 percent rating for burn scars for 30 years and the disability has been static and, therefore, cannot be reduced. See November 2021 Board Hearing Transcript; October 2016 Notice of Disagreement. The Veteran's attorney also referenced the U. S. Court of Appeals for the Federal Circuit's (Federal Circuit's) holdings in Murray v. Shinseki, 24 Vet. App. 420 (2011), which involved rating reductions. Significantly, however, the provisions of 38 C.F.R. § 3.344 (stabilization of disability evaluations), which concerns the reduction of ratings, do not apply in this case. This is because, as explained above, the discontinuance of a 10 percent disability rating under 38 C.F.R. § 3.324 does not involve a rating reduction. Rather, the question of whether the Veteran's 10 percent disability rating for multiple, noncompensable, service-connected disabilities can be continued is governed by the provisions of 38 C.F.R. § 3.324 and a 10 percent rating under the provisions of 38 C.F.R. § 3.324 in combination with any other rating is prohibited as a matter of law. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Metzner, Paul The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.